McQuin v. Missouri Pacific Railroad Corporation
| Decision Date | 29 January 1932 |
| Docket Number | 27833 |
| Citation | 240 N.W. 515,122 Neb. 423 |
| Parties | THOMAS J. MCQUIN, ADMINISTRATOR, APPELLEE, v. MISSOURI PACIFIC RAILROAD CORPORATION ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Cass county: JAMES T. BEGLEY JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. " It is the positive duty of an automobile driver approaching a railroad crossing where there is a restricted vision, and where he is familiar with said crossing, and its surroundings, to look and listen at a time and place where looking and listening will be effective; and failure to observe this rule, without reasonable excuse therefor, is negligence." Kepler v. Chicago, St. P., M. & O. R. Co., 111 Neb. 273, 196 N.W. 161.
2. Evidence examined, and held not to warrant us in holding, as a matter of law, that plaintiff's intestate was guilty of such contributory negligence as would bar a recovery.
3. Section 74-562, Comp. St. 1929, requiring that a bell shall be rung or a whistle blown by locomotives at a distance of at least eighty rods from the place where the railroad shall cross any road or street and be kept ringing or whistling until it shall cross such road or street, applies as well to roads in fact used by the public though not dedicated as public highways as to those so dedicated.
Under the facts stated in the opinion, held that the road crossed by the railroad at the place where the collision occurred was a road in fact used by the public, and that it was the duty of the defendant railroad company as its train approached the crossing to have rung the bell or sounded the whistle as required by said statute.
4. On the question of negligence and contributory negligence, the facts in this case are such that different minds may reasonably draw different conclusions therefrom and were for the jury and not for the court to determine.
5. In the absence of statutory regulation requiring it, the failure of a railroad company to have a flagman or watchman at a crossing will not warrant a jury in finding negligence on the part of the railroad company, unless there is evidence that such crossing is rendered more than ordinarily hazardous and dangerous by the conditions surrounding the same, and that the ordinary signals may be ineffective to warn travelers of the approach of a train.
Held, under the rule stated, the evidence was insufficient to warrant a finding by the jury of negligence for the failure of the defendant railroad company to have a flagman or watchman at the crossing where the accident occurred, and the giving of an instruction submitting such issue to the jury was error.
6. Where the court by an instruction submits an issue to the jury and later by another instruction given at the request of the defendants withdraws such issue, this court will not reverse the case on account thereof, where it appears the jury were not misled thereby to the prejudice of the defendants.
7. Where a federal District Court has remanded to the state court a cause theretofore removed therefrom, no state court has power on appeal or otherwise to review such order of the federal court. By such an order of remand the state court is reinvested with jurisdiction and may rightfully proceed as if no removal had ever been attempted.
Appeal from District Court, Cass County; Begley, Judge.
Action by Thomas J. McQuin, as administrator of the estate of Clifford J. McQuin, deceased, against the Missouri Pacific Railroad Corporation and another. Judgment for the plaintiff, and the defendants appeal.
Reversed, and cause remanded for a new trial.
Kennedy, Holland & DeLacy and W. G. Kieck, for appellants.
C. A. Rawls and Brogan, Ellick & Van Dusen, contra.
Heard before GOSS, C. J., DEAN and EBERLY, JJ., and CHASE and LOVEL S. HASTINGS, District Judges.
This action is brought by Thomas J. McQuin, as administrator of the estate of Clifford J. McQuin, against the Missouri Pacific Railroad Corporation and H. F. Kilmer, as defendants, to recover damages growing out of the death of Clifford J. McQuin, due to a collision between the automobile he was driving and a freight train of defendant railroad company which was being backed over a railroad crossing. The defendant Kilmer was a brakeman taking part in the operation of the train. From a judgment for $ 6,000 on a verdict of the jury the defendants have appealed.
The acts of negligence alleged by plaintiff and submitted to the jury were: That the train of the defendant railroad was being operated without any headlight or other light on any part of the train that was visible from the direction toward which such train was moving at the time; without any person on said crossing to warn travelers upon said highway of the approach of said train to the crossing; without giving any warning by light, bell or whistle or otherwise of the approach of said train to said crossing; and without keeping and maintaining a lookout for travelers approaching or about to pass over said crossing.
Defendants alleged contributory negligence on the part of plaintiff's intestate, in that he failed to look and listen for the approaching train at a point where looking and listening would have been effective, and that in the exercise of reasonable care ought to have known that a train was approaching and that he would be struck if attempting to cross in front of the same.
The collision occurred about 1 o'clock in the morning of March 21, 1930, about one-half mile south of the Village of Union, in Cass county, on a crossing of the defendant railroad.
It appears from the evidence that a main traveled highway parallels the railroad tracks for about a half mile south of Union, where the main highway turns to the east and away from the railroad tracks. From that place, there is a road leading from the main highway west, which crosses the railroad track about fifty feet west from where the main highway turns to the east. Where the road going west crosses the railroad track, the defendant company maintained the usual public crossing with the usual crossing sign and cattle guards at the south end. This road is entirely unobstructed until about fifty feet west of the railroad tracks where there is a large iron gate in the right of way fence. The road extends from that point west about one-eighth of a mile and then about one-eighth of a mile south to the home of one Wencel, where it terminates.
The crossing was constructed by the defendant railroad more than twelve years prior to the accident. The road in question, although it was not a regularly laid out highway, had been in use for many years prior thereto, and at least from the time the crossing was established had been open for public travel and accommodated a portion of the traveling public.
At the point where the road crosses there are two tracks, the east track, being the main line track, and the west track, referred to in the evidence as the passing track. The tracks run southeasterly. Fifteen hundred fifty-four feet southeasterly of the crossing is a switch which connects the passing track with the main track. The distance between the west rail of the main track and the west rail of the passing track is thirteen feet and ten inches. It was the custom of the defendant company to leave cars on the passing track between the crossing and the switch that were to be taken up later by trains going south on the main line.
On the night of the accident, the decedent, Clifford J. McQuin, in company with George Kennison, Wymore Fletcher, and Donald McQuin, had gone from Union in a five passenger sedan to the home of Mr. Wencel, where they stayed until nearly 1 o'clock. When they left for home the decedent was driving the car, with George Kennison seated at his right in the front seat, and with Wymore Fletcher and Donald McQuin riding in the back seat; Fletcher riding on the right side and McQuin on the left side. The night was partly cloudy and dark; the headlights of the car were lighted. From the Wencel place they drove north and then east. In driving along the east road, they saw no lights and heard no noise that might indicate the presence of a train, but from the reflection of the automobile lights saw some box cars on the passing track. They continued on east and drove through the gate at a point about twenty-five or thirty feet west of the west rail of the passing track and about half of the distance between the gate and said track, where the car was stopped. Kennison got out leaving the right door open, and went back to close the gate, which they had left open when they went over to Wencel's place earlier in the evening. After Kennison closed the gate decedent asked him if he saw or heard any train. He looked and listened and stated that he could neither hear nor see any train south of the crossing; that all he could see was a part of a string of box cars, but it was so dark that he could not see how far they extended south and east; that he thought he heard a train coming into Union from the north, but could not see it. Fletcher and Donald McQuin both testified that they looked and all that they could see was a part of the string of box cars, and they could not tell how far they extended south, but estimated that the north end of the cars was within fifteen or twenty feet of the crossing, and, although they looked and listened, there was nothing to indicate the presence of a train south of the crossing. Kennison, Fletcher and Donald McQuin all stated positively that they heard no sound of a whistle or of a bell ringing or of the movement of a train south of the crossing, and that, had the bell been ringing or the whistle sounded, they would have heard it. Kennison got into the car and the decedent drove the car...
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